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Reporter Risked Legal Trouble To Publish Donald Trump’s Tax Return

The New York Times executive editor said during a visit to Harvard in September that he would risk jail to publish Donald Trump’s tax returns. He made good on his word Saturday night when the Times published Trump tax documents from 1995, which show the Republican presidential nominee claimed losses of $916 million that year — enough to avoid paying federal income taxes for as many as 18 years.

Federal law makes it illegal to publish an unauthorized tax return or “return information”:

It shall be unlawful for any person to whom any return or return information (as defined in section 6103(b)) is disclosed in a manner unauthorized by this title thereafter willfully to print or publish in any manner not provided by law any such return or return information. Any violation of this paragraph shall be a felony punishable by a fine in any amount not exceeding $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution.

The Times published the first page of Trump’s 1995 New York state resident income tax return, the first page of his New Jersey nonresident tax return and the first page of his Connecticut nonresident tax return.

Under New York law, it is unlawful “to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return.” Non-government employees face fines of as much as $10,000 and imprisonment for as long as one year.

In New Jersey, “any person … divulging, disclosing or using [tax] information shall be guilty of a crime of the fourth degree,” which carries a maximum sentence of 18 months in prison.

Connecticut’s law against disclosure of tax information is more narrowly worded and, as the Hartford Courant reported, appears not to apply to the Times.

Baquet said during a panel discussion at Harvard that if the Times’ lawyers advised him not to publish Trump tax returns, he would argue that such information is vital to the public interest because the real estate mogul’s “whole campaign is built on his success as a businessman and his wealth.”

Two weeks later, Times reporter Susanne Craig found tax documents in her mailbox.

The Washington Post’s Justin Wm. Moyer and Lisa Rein recently wrote about the strengths and weaknesses of the “public interest” defense suggested by Baquet:

First Amendment experts note that while the media could be prosecuted for publishing Trump’s tax returns, a news organization could also assert a First Amendment defense. In the case of the Pentagon Papers, for example, The Post argued that publication served an important public interest.

But those arguments would not be sure winners, experts said. And members of the media would need to consider risks to their sources in any investigation of who shared Trump’s tax information.

“The courts could say, if the public thinks the tax returns are so important, let it demand that the candidate authorize the IRS to release them on pain of losing votes,” said Jonathan Zittrain, a privacy expert and professor at Harvard Law School.

After the Times published its story, the legal blog Concurring Opinions collected the views of 10 experts in First Amendment law, who concluded that the newspaper is likely on firm ground, so long as it did not participate in illegally accessing Trump’s tax documents.

Zittrain told me that “if the New York Times received the return information not from the government after it was filed but from a private citizen, such as one working for Trump and from Trump’s own records, criminal liability may be less clear, which could mean that ascertaining where the material didn’t come from is as important as where it did.”

The Times appears not to know who its source is; the tax documents were mailed anonymously. Jack Mitnick, listed as the preparer of Trump’s New Jersey return, verified that document’s authenticity.

Through an attorney, the famously litigious Trump already has threatened “prompt initiation of appropriate legal action” against the Times.

Washington Post associate editor Bob Woodward, who joined Baquet on the Harvard panel and also said he would risk jail to publish Trump’s tax returns, joked during the talk that in the event of a criminal conviction, perhaps everyone in the newsroom could serve one day of the sentence.